B.K. Mukherjea, J.
1. This is an appeal on behalf of the plaintiff and the suit was one for recovery of arrears of rent due in respect of a tenure which is described as a putni tenure for the period commencing with Chaitra kist of 1340 B.S. and ending with the Aswin kist of 1342 B.S. There were ten defendants in the suit and out of them defendant 10 did not appear or contest the proceeding. The defence of the other defendants was substantially of a two-fold character. It was contended in the first place that defendants 1 to 8 having executed a conveyance in respect of their 2/3rds share in the tenure in favour of defendant 9 on 29th Chaitra 1340 B.S. were not liable for rent for the period in suit. The other contention raised was that as defendant 9 subsequently purchased the tenure at a rent sale in the beginning of the year 1342 B.S. the claim for rent of that year for -which defendant 9 alone was responsible, was improperly joined with the claim for the earlier year, and the suit was bad for inisjoinder of parties and causes of action. The trial Court overruled the first contention and held that as the tenure in dispute was a putni tenure, the transfer of a share in the same by defendants 1 to 8, which was not recognized by the landlord did not absolve them from their liability to pay rent. The trial Judge however gave effect to the second contention and dismissed the plaintiff's claim so far as it related to the arrears of rent for the year 1342 B.S. The result was that the suit was decreed as against defendants 1 to 8 and 10 only in respect of the rent due from Chaitra 1340 to the end of 1341 B.S. Against this decision there was an appeal taken by defendants 1 to 8 to the lower Appellate Court. The learned District Judge who heard the appeal came to the conclusion that the potta did not create a putni tenure within the meaning of Regn. 8 of 1819 but an ordinary permanent tenure, and consequently the liability of defendants 1 to 8 ceased as soon as they executed a kobala in respect of their share in favour of defendant 9. In this view of the case, the lower Appellate Court dismissed the suit of the plaintiff as against defendants 1 to 8. It is against this decision that the present second appeal has been preferred.
2. Dr. Paul who appears in support of the appeal has raised two points for our consideration. In the first place he has invited us to hold that the construction put upon the potta (Ex. 2) by the lower Appellate Court is wrong, and on a proper interpretation of the document it should be held that the tenure was really a putni within the meaning of Regn. 8 of 1819. In the second place he has argued that, in any view of the case, there should be a decree against defendant 9 who was admittedly the transferee of the share of defendants 1 to 8 from Chaitra 1340 B.S. Now, so far as the first point is concerned, the document undoubtedly purports to a putni potta, but the lessor leased out not only his interest as a fractional proprietor of certain mouzahs hut certain jote rights also which were within the ambit of the said mouzas. The rent that is reserved by the potta is an aggregate rental for both the rights and there is no attempt to separate this any where in the document. Dr. Pal has argue before us that the so called jote lands might have originally been raiyati holdings within the estate, but after they were purchased by the proprietor they were held by him in his capacity as proprietor under the provisions of Section 22, Ben. Ten. Act, and consequently it was open to him to create a putni in respect of these lands. The contention so far as it goes is undoubtedly sound, but we do not find any materials: here upon which we can hold that these jote lands really became khas lands of the proprietor under the provisions of Section 22, Ben. Ten. Act. This question is really a question of fact and has not been investigated by either of the Courts below and it is difficult for us sitting in second appeal to give effect to this contention and hold; without any evidence whatsoever that although these lands were described as jote lands they were in reality the khas lands of the proprietor. In these circumstances we are unable to give effect to the conten-tion of Dr. Pal and we must accept the interpretation that has been put upon the document by the lower Appellate Court as correct.
3. As regards the second point of Dr. Pal there is this difficulty in his way, namely that the question was not raised before the lower Appellate Court and his client did not prefer any appeal or cross objection against the trial Court's decision which dismissed the suit as against defendant 9. Even in the memorandum of appeal to this Court this point was not taken as one of his grounds of appeal and it seems to us that his client never wanted a decree against defendant 9 and his attempt throughout was to make defendants 1 to 8 liable for the rent of this period. In these circumstances we do not think it proper to give him any relief under Order 41, Rule 33, Civil P.C. The result is that the appeal fails and it is dismissed. We make no order as to costs. I desire to make it clear that this decision would not in any way affect the right of defendant 10 to get contribution from defendant 9 if he is otherwise entitled to it under law.
4. I agree.